Telangana High Court
Bharat Rashtra Samithi Brs vs The State Of Telangana on 14 August, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION No.22042 of 2024
ORDER:
This Writ Petition has been filed with the following
prayer:
" ... Hon'ble Court may be pleased to issue a Writ order or
direction more in the nature of Writ of Mandamus under
Article 226 of the Constitution of India declaring the action of
the Respondent NO.3, in rejecting the regularization of
construction vide Proc in File No.007166/BP/NALG /
3048/0027/2024 dt.20-07-2024 on the file of Commissioner,
Nalgonda Municipality as improper, arbitrary and against the
principles of natural justice set aside the same and
consequently direct the respondent No.3, authority to consider
the application for regularizing the construction in land
measuring Ac.1-00 gts in Sy.Nos.1498 & 1506 situated at
Nalgonda village & Mandal, Nalgonda District in terms of the
application made on 03-07-2024 and pass such other orders/s
in the interest of justice."
2. Heard learned counsel for the petitioner, learned
Government Pleader for Municipal Administration and Urban
Development appearing on behalf of respondent No.1, learned
Government Pleader for Revenue appearing on behalf of
respondent No.2 and Sri B.Jagan Madhav Rao, learned Standing
Counsel appearing on behalf of respondent Nos.3 and 4, and
perused the record.
3. Petitioner contends that it is a registered Political Party with
Head Quarters at Hyderabad and office at District Head
Quarters; that for carrying out its political activities and to reach
out to every person in the District level, it had proposed to have a
party office; and that one such party office was proposed at
Nalgonda; and that in the year 2018, the Government of
Telangana had issued G.O.Ms.No.167 Revenue (Assn-I)
Department dated 16-08-2018 and G.O.Ms.No.66 Revenue
(Assn-I) Department dated 21-06-2019 whereunder the land
admeasuring Ac.1.00 in Sy.Nos.1498 and 1506 located at
Nalgonda village was allotted in favour of the petitioner for
construction of party office for a total consideration of
Rs.4,84,000/-.
4. It is also the contention of the petitioner that upon issuance
of the aforesaid G.Os. and payment of the amount specified
thereunder being made, the Revenue Divisional Officer attached
to the office of the 2nd respondent had conducted panchanama
and handed over possession of the land in the above mentioned
survey numbers to the petitioner on 24-06-2019.
5. Petitioner further contends that on taking possession of the
land, it had made construction of a permanent structure and a
huge hall, which is temporary in nature.
6. Petitioner further contends that while undertaking the
construction, it was informed that the required application for
obtaining permission for construction would be processed by the
Head Quarters and as such, the petitioner being the District Level
Office did not make any application for construction.
7. It is the further contention of petitioner that however, due to
communication gap, no application for obtaining permission was
made either by the District Level Office or the Head Quarters at
Hyderabad, and in the meantime, the construction undertaken
was completed.
8. Petitioner further contends that due to changed political
scenario in the State and the excerpts that have appeared in the
News relating to the validity of the construction made, it had
approached respondent Nos.2 and 3 and submitted an application
on 03-07-2024 seeking regularization of the construction i.e.
structure made pursuant to the allotment of land under the above
mentioned G.Os. by paying requisite fee.
9. Petitioner further contends that on the petitioner submitting
the aforesaid application, the 4th respondent had inspected the
premises and submitted a report to the effect that the structure on
western side and northern side does not have required setbacks
and recommended for rejection of the application.
10. Petitioner further contends that it is out of pure political
vengeance and in spite of plenty of open space being available
towards eastern side and the southern side totally being an open
Government land, an objection was raised without appreciating
that there is no likelihood of any damage or injury to any person,
and thus, the rejection of application for regularization on the
ground of not maintaining necessary setbacks is clearly vitiated
and is liable to be set aside.
11. Petitioner further contends that consequent upon the
3rd respondent rejecting the regularization application made by it,
the respondent authorities, by adopting a vindictive stand, are
threatening to demolish the structures raised by it without
following due process of law and also opposed to principles of
natural justice.
12. Per contra, learned Standing counsel appearing on behalf of
respondent Nos.3 and 4 by drawing the attention of this Court to
the rejection letter dated 20-07-2024 would firstly contend that
petitioner had made application under the TG-bPASS Act, 2020
on 20-07-2024 seeking building permission for construction of
building consisting of one cellar + 2 upper floors; that on the
petitioner making the application under the TG-bPASS online
process, the officials of the 3rd respondent have caused inspection
on the same day and taking note of the fact that a building
consisting of Ground + 2 upper floors is already existing and also
that the said building is not as per Building Rules, had
recommended for return of the application as unapproved; and
that based on the said recommendation, the 3rd respondent
authority had rejected the building permission, since building
permission has been sought for in respect of an already existing
building and is not intended for a proposed construction to be
made therein.
13. Learned Standing counsel secondly, contends that as per the
provisions of the Telangana Municipalities Act, 2019 (for short
'the Act'), no power akin to power under Section 455-A of the
Greater Hyderabad Municipal Corporation Act, 1955 is vested
with the Commissioner to regularize a construction made
without obtaining permission, even if it is as per Building Rules
notified vide G.O.Ms.No.168 dated 07-04-2012, and thus, no
action can be taken by the respondent authorities on the
representation submitted by the petitioner on 03-07-2024.
14. Learned Standing Counsel thus submits that since the
building permission application submitted by petitioner in
respect of an exiting building having been rejected, apprehending
that the respondent authorities would take further action against
the aforesaid construction made by the petitioner without
obtaining any valid permission or sanction from the concerned
authorities under the Act, the present Writ Petition is filed.
15. I have taken note of respective contentions urged.
16. While the petitioner contends of it being allotted land by the
Government of Telangana, the issue involved in the present Writ
Petition is not related to the allotment of land, rather it is in
relation to construction made on the land allotted.
17. It is to be seen that the petitioner by its own admission in
the Writ affidavit, admit to the fact that no permission had been
obtained by it for undertaking the construction due to
communication gap.
18. If one takes note of the provisions of TG-bPASS Act,
2019, in particular Section 7(1) r/w Section 174 of the Act, it
would be clear that no construction can be made without
obtaining prior building permission from the authorities
concerned. The petitioner having made construction without
obtaining any permission or sanction from the authorities
concerned, even though possessing valid title to the subject land,
cannot make the structure raised by it therein as an authorized
construction.
19. It may also not be out of place to mention that while the
petitioner claims to have made construction under a wrong
impression of the Party Head Quarters obtaining building
permission, no material is placed before this Court at least to
establish that the constructed building having been assessed to
tax by the respondent authorities, by which it can be said that the
authorities taking cognizance of the construction made by
assigning Door number. Though, mere assigning of Door
number or assessment to Property Tax would not make the
construction as authorized and legal, as the same is intended for
enjoyment of various civic amenities like sewer, Road, lighting
etc.
20. Though, petitioner claims to have made an application
seeking regularization of the said construction by submitting an
application on 03-07-2024, the same does not by itself confer
any power on the 3rd respondent authority, in absence of any
such power being conferred under the Act for regularizing the
unauthorized and illegal construction made either by collecting
penal fee or by compounding the same.
21. At this juncture, it is apt to refer to the decision of the
Hon'ble Supreme Court rendered in M.I. Builders (P) Ltd Vs.
Radhae Shyam Sahu 1 wherein, it has been held that a judicial
(1999) 6 SCC 464
review of a decision is permissible if the impugned action is
against law or in violation of prescribed procedure or is
unreasonable, irrational or mala fide. The Hon'ble Apex Court
further held that the power of judicial review also extends in
protecting the larger interests of the people and when it comes to
ensuring constitutional governance by Rule of Law, and in such
situations equities have no place. In the facts of the case, though
petitioner pleads equities by claiming communication gap as the
reason for not obtaining permission, the said reason would not
make an otherwise unauthorized construction valid, merely
because the petitioner is a political party serving people, while
such other unauthorized/illegal constructions are dealt with under
the Act.
22. Further, the Hon'ble Supreme Court in Mahendra Baburao
Mahadik and Others Vs. Subhash Krishna Kanitkar and
others2 while dealing with regularization of unauthorized
construction, held that a statutory body was bound to exercise its
powers only within the four corners of the statute. The relevant
observations are as under:
(2005) 4 SCC 99
"40. The Municipal Council being a creature of statute
was bound to carry out its functions within the four-
corners thereof. Being a statutory authority, it was
required to follow the rules scrupulously. Concededly,
the Municipal Council is not possessed of any statutory
power to regularize unauthorized constructions. Its
power is confined to compounding the offences in
certain cases. Moreover, even development charges
could not be recovered from the Appellant in respect of
unauthorized constructions in terms of Section 124E(2) of
the MRTP Act."
(emphasis supplied)
23. Further, the Hon'ble Supreme Court in Sanjay Adlakha Vs.
State of Haryana and others 3 dealing with the construction
made in deviation of statute, and regularization sought thereof,
had held that the machinery of the State ought not to aid the
economically and politically affluent people in violating the
Town Planning Scheme. The relevant observations are as under:
"74. In the last four decades, almost all cities, big or small, have seen
unplanned growth. In the 21st century, the menace of illegal and
unauthorised constructions and encroachments has acquired
monstrous proportions and everyone has been paying heavy price for
the same. Economically affluent people and those having support
of the political and executive apparatus of the State have
constructed buildings, commercial complexes, multiplexes, malls,
(2011) 15 SCC387
etc. in blatant violation of the municipal and town planning laws,
master plans, zonal development plans and even the sanctioned
building plans. In most of the cases of illegal or unauthorised
constructions, the officers of the municipal and other regulatory
bodies turn blind eye either due to the influence of higher
functionaries of the State or other extraneous reasons. Those who
construct buildings in violation of the relevant statutory provisions,
master plan, etc. and those who directly or indirectly abet such
violations are totally unmindful of the grave consequences of their
actions and/or omissions on the present as well as future generations
of the country which will be forced to live in unplanned cities and
urban areas. The people belonging to this class do not realise that the
constructions made in violation of the relevant laws, master plan or
zonal development plan or sanctioned building plan or the building is
used for a purpose other than the one specified in the relevant statute
or the master plan, etc., such constructions put unbearable burden on
the public facilities/amenities like water, electricity, sewerage, etc.
apart from creating chaos on the roads. The pollution caused due to
traffic congestion affects the health of the road users. The pedestrians
and people belonging to weaker sections of the society, who cannot
afford the luxury of air-conditioned cars, are the worst victims of
pollution. They suffer from skin diseases of different types, asthma,
allergies and even more dreaded diseases like cancer. It can only be a
matter of imagination how much the Government has to spend on the
treatment of such persons and also for controlling pollution and
adverse impact on the environment due to traffic congestion on the
roads and chaotic conditions created due to illegal and unauthorised
constructions. This Court has, from time to time, taken cognizance
of buildings constructed in violation of municipal and other laws
and emphasised that no compromise should be made with the
town planning scheme and no relief should be given to the violator
of the town planning scheme, etc. on the ground that he has spent
substantial amount on construction of the buildings, etc.-- K.
Ramadas Shenoy v. Town Municipal Council, Udipi, G.N.
Khajuria (Dr.) v. DDA, M.I. Builders (P) Ltd. v. Radhey Shyam
Sahu, Friends Colony Development Committee v. State of Orissa,
M.C. Mehta v. Union of India and S.N. Chandrashekar v. State of
Karnataka.
75. Unfortunately, despite repeated judgments by this Court and
the High Courts, the builders and other affluent people engaged in
the construction activities, who have, over the years shown scant
respect for regulatory mechanism envisaged in the municipal and
other similar laws, as also the master plans, zonal development
plans, sanctioned plans, etc., have received encouragement and
support from the State apparatus. As and when the Courts have
passed orders or the officers of local and other bodies have taken
action for ensuring rigorous compliance with laws relating to planned
development of the cities and urban areas and issued directions for
demolition of the illegal/unauthorised constructions, those in power
have come forward to protect the wrongdoers either by issuing
administrative orders or enacting laws for regularisation of illegal
and unauthorised constructions in the name of compassion and
hardship. Such actions have done irreparable harm to the concept
of planned development of the cities and urban areas. It is high
time that the executive and political apparatus of the State take
serious view of the menace of illegal and unauthorised
constructions and stop their support to the lobbies of affluent class
of builders and others, else even the rural areas of the country will
soon witness similar chaotic conditions."
(emphasis supplied)
24. Though, the petitioner claims to have made construction on
account of communication gap, it is not shown to this Court that
the petitioner at any time prior to the alleged change of political
scenario having realized the breach of the provisions of the Act
committed by it and having taken any remedial steps by
addressing the same, so as to ensure that the Act does not make
any distinction between an extremely poor people and the
economical affluent and politically influenced people, as had
held by the Hon'ble Apex Court in Sanjay Adlakha's case.
25. Further, the Hon'ble Supreme Court echoing the view that
the unauthorized and illegal constructions do not advance the
aim of the State to ensure planned development, in Esha Ekta
kta Apartments Co-operative Housing Society Ltd. and others
Vs. Municipal Corporation of Mumbai and others 4 had rejected
the case for directing the respondents to regularize the
construction made in violation of sanctioned plan, observed as
under:
"we would like to reiterate that no authority
administering municipal laws and other similar laws
can encourage violation of the sanctioned plan. The
Courts are also expected to refrain from exercising
equitable jurisdiction for regularization of illegal and
unauthorized constructions else it would be encourage
violators of the planning laws and destroy the very
idea and concept of planned development of urban as
well as rural areas".
(emphasis supplied)
26. In the facts of the case, admittedly the petitioner does not
have any sanctioned plan at all for it to seek regularization of the
construction made in deviation of sanction plan.
(2013) 5 SCC 357
27. Further, having regard to the law as enunciated by the
Hon'ble Supreme Court and the Scheme of the Act read with
Sub - Clause (d) of Clause 26 of the Building Rules, 2012 issued
under G.O. M.S. No. 168 dated 07.04.2012, this Court is of the
view that municipality can only compound a deviation up to 10
percent in the sanctioned plan, and does not have power to
regularize an unauthorized constructed made without even
applying for building permission before making such
construction. Thus, merely because the petitioner is a political
party, and claims of communication gap, no indulgence can be
shown by allowing regularization of construction made without
obtaining any permission in complete disregard of the Building
laws.
28. On the contrary, the petitioner being a political party cannot
claim the defence taken by a common man that they lacked
awareness about the nuances of the law, more so, when the
petitioner party itself spearheaded the enactments in question i.e.,
TG-bPASS Act, the Telangana Municipalities Act, 2019, during
their tenure over the last decade. Thus, this Court is of the view
that the petitioner herein cannot be permitted to either plead that
they were ignorant of the scheme of the Act, qua the obligations
to be undertaken thereunder before commencement of
construction or seeking regularization of the unauthorized
construction as an exception to the rule in isolation of the
populace at large.
29. Further, it is also to be noted that while the petitioner is
claiming that its application dated 03-07-2024 made for
regularization as having been rejected, no such proceeding is
annexed to the Writ petition. On the other hand, the impugned
proceeding is pursuant to an application for grant of building
permission made under TG-bPASS online process in respect of
an already existing building, which as noted above, cannot be
considered.
30. If at all the petitioner is aggrieved by the aforesaid order of
rejection if any passed, it could have availed the remedy
provided under the respective enactments. Instead of adopting
the aforesaid course of action, petitioner has filed present Writ
Petition claiming as if the regularization application as having
been rejected, which itself clearly shows that the petitioner is
lacking clarity as to which of the application filed by it is
considered by the authorities.
31. In view of the above, this Court is of the considered view
that the petitioner is not entitled for grant of any relief with
regard to the impugned proceeding dated 20-07-2024 termed as
"TG-bPASS Rejection Letter" passed by the 3rd respondent
rejecting the application submitted online for grant of building
permission in respect of an existing building. However,
petitioner is at liberty to avail the remedies provided under the
respective enactments against the impugned proceeding, if so
advised.
32. Subject to above observations, the Writ Petition is disposed
of. No costs.
33. As a sequel, miscellaneous petitions pending if any shall
stand closed.
____________________
T. VINOD KUMAR, J
Date: 14.08 .2024
Vsv
